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THE 



American Constitution 



A SPEECH DELIVERED BY 

Hon. Samuel W. McCall 

OF MASSACHUSETTS, AT 

JAMESTOWN, ON SEPTEMBER 17, 1907, ON THE OCCASION 
OF THE ONE HUNDRED AND TWENTIETH ANNI- 
VERSARY OF THE ADOPTION OF THE 
NATIONAL CONSTITUTION BY 
THE CONVENTION OF 
1787. 



REPRINTED FROM 

THE INTER-NATION 

BOSTON, MASS. 



t^' 



&^j; i I92S 



Copy- a» 



THE AMERICAN CONSTITUTION 

BY HON. SAMUEL W. McCALL, 

(Following is the full text of the speech which Congressman Mc- 
Call delivered at Jamestown on September 17. 1907, on the occasion of 
the one hundred and twentieth anniversary of the adoption of the Na- 
tional Constitution by the convention of 1787. Mr. McCall has kindly 
furnished us the manuscript, which is entitled to rank as part of the 
permanent political literature of the American people. We say this 
advisably, for we can recall no discussion of the Constitution in recent 
years which more perfectly conjoins the wisdom of the philosopher 
with the experience of the man of affairs.— Editor of The Inter-Nar 
tion.) 

I have listened with deep interest to the eloquent speech of 
my friend, the president of the Exposition,^ and to the learned 
address of the distinguished jurist and statesman who has just 
spoken.*^ It is most fitting that, in the celebration of the founding 
of Virginia, a day should be set apart for doing honor to the 
national constitution, in the formation of which she bore so large 
a part. That great Virginian, that great i\.merican rather, George 
"Washington, was chiefly responsible for the existence of the conven- 
tion and presided over its deliberations. The "Virginia plan" 
presented by Edmund Bandolph was made the basis of its work. 
James Madison and the other delegates from this state performed 
a part which history delights to recall, and the debt of the country 
for Virginia's work in the great convention is beyond all calcula- 
tion. What place is there in all America where the anniversary 
of the final passage of the Constitution in the national convention 
could more fittingly ba observed than upon the spot where Vir- 
ginia was born, where the air is still vital and throbbing with the 
eloquence of those great voices of another time? 

Coming, as I do, from the Commonwealth of Massachusetts, 
which for more than two centuries had a development parallel 
with your own, which was closely associated with you in all the 
glorious events of the revolution and which might indeed be fitting- 



1 Hon. H. St. George Tucker. 

2 Hon. Alton B. Parker. 



4 THE AMERICAN CONSTITUTION 

ly called the twin sister of Virginia, it is with peculiar pleasure that 
I take part on this occasion. The settlements at Jamestown and 
at Plymouth Avere near each other in point of time, and their 
influence, gradually radiating from each center through the sur- 
rounding wilderness, at last blended together, and became the 
most potent force in the establishment of civil government in 
America, in achieving our independence, and in forming the 
national Constitution. 

Perhaps no other political document has received the degree 
of attention that has been bestowed upon the Constitution. It 
has been lauded by great orators, expounded by great lawyers, and 
interpreted by authors almost without number. It has been au- 
thoritatively construed by as august a Judicial body as has been 
known in history. Whatever is new about it is apt to be doubtful. 
On this occasion I shall not traverse the broad and well known 
field, but I shall atteinpt to bring to your attention a few con- 
siderations, well worn no doubt, which seem to me most timely, 
in view of the special trend of the day. '^ 

I know it is sometimes said that the Constitution is becoming 
antiqi^ated and outgrown. It is doubtless true that since the 
SpaniL-h war authoritative efforts have been made to free the 
government from its limitations, in order that we might prosecute 
a new and ambitious policy — a policy which, now that we have 
embarked upon it, I think all thoughtful and patriotic citizens 
wish we were well rid of. We have here and there, scattered over 
the globe, little pro-consuls, governing despotically in the American 
name. Ambitious statesmen chafe under its restraints, and enter- 
prising people, desirous of embodying in the policies of the nation 
every "ism" that may be floating upon the air, would have a style 
of constitution which would change with every autumn and spring. 
Nc doubt there are those who think it a fitting time for us today 
to "come to bury Caesar, not to praise him." 

But the principles of the Constitution were never more vital, 
and its limitations never more necessary to real progress and lib- 
erty than at this very hour. If its terms have been forgotten or 
violated, the result has not been such as to tempt us to repetition. 
It has endured the storm and stress of more than a century; 
it has successfully met every crisis, and under it the nation has 
had a growth beyond all parallel in history. It satisfied every 
demand of our vigorous and growing youth, and as well responded 



THE AMERICAN CONSTITUTION 5 

to every need of the splendid maturity of our people. It has stood 
the strain of war. For more than a hundred years it permitted 
us, without usurpation, to do everything that our national well- 
heing required to be done. If it has thwarted some adventurous 
designs and set at naught the crude and callow projects of inex- 
perience, that was one of the things it was supremely designed to 
do. We need not claim that it is perfect, but it is probably more 
ne,arly perfect than any constitution we should adopt today. 
Important amendments to it have been proposed, which were after- 
wards shown to be useless. Seven years ago, for instance, a ma- 
jority of the House of Eepresentatives voted for the so-called anti- 
trust amendment, and yet the Sherman anti-trust statute has 
been proven so drastic, that the attorney general has formally 
recommended that it be made less strong, and drastic as it is^ it is 
probable that it does not exhaust the constitutional powers of 
Congress upon the subject. 

But if amendments are desirable there is a way provided for 
their adoption. And upon this day wliich is the anniversary of 
the farewell address, as well as of the final action of the conven- 
tion, we may well ponder upon those weighty words spoken by 
that great soldier and statesman, to whom more than to any other 
man we are indebted for our independence and our national gov- 
ernment. "If in the opinion of the people," said George Wash- 
ington one hundred and eleven years ago today, "the distribution 
or modification of the constitutional powers be in any particular 
wrong, let it be corrected by amendment in the way the Consti- 
tution designates. But let there be no change by usurpation; for, 
though this in one instance may be the instrument of good, it is the 
customary weapon by which free governments are destroyed. The 
precedent must always greatly overbalance in permanent evil any 
partial or transient benefit which the use can at any time yield." 

But it is proposed to expand the Constitution by "construc- 
tion." So far as the rules of interpretation are concerned, they 
should of course be applied, not with the technical narrowness 
employed in construing penal statutes, but with the liberality 
befitting the organic act of a governmient in which general terms 
must necessarily be used. But if imder the pretence of exercising 
a granted power a power not granted is put in force, then we 
should have substantially that usurpation which would fall 
under the denunciation of George Washington. It is pro- 
posed, for instance, to construe the power to regulate 



6 THE AMERICAN CONSTITUTION 

commerce between the States so as absolutely to prohibit it, and 
thus to exercise jurisdiction over the processes of production 
within the limits of a State. Control of every country road and 
every city street over which a letter carrier may travel is to be 
assumed under the power to establish post roads, while the taxing 
power is to be invoked, not for the purpose of raising revenue for 
the government, but for the purely social purpose of limiting the 
size of fortunes. Other threatened infractions, if possible more 
culpable, might also be mentioned. I am familiar with the tri- 
umphant ad captandum, made for want of argument to serve as 
a reply to such criticisms. Tt is that they are urged in favor of 
corporations. But how does it happen that so far as governmental 
favors are concerned, the corporations derive their peculiar juice 
and fatness, not under State enactments, but under the subsidies 
of national laws. And, unless it be for their interest to do so, 
why is it also that many great corporations — common carriers and 
insurance companies — have been pressing for national rather than 
State control ? 

What is the grand distinctive thing about the American Con- 
stitution? Mr. Gladstone has said that it "is the most wonderful 
work struck off at a given time by the brain and purpose of man." 
Making allowances for Mr. Gladstone's rhetorical way of putting 
things, he probably did not mean that the framers enunciated for 
the first time the principles of the Constitution, but that at a given 
time many great principles were assembled together as the frame 
of the Government of what was destined to be a great nation. In 
that respect it was unique. The constitutions of other nations had 
almost invariably been unwritten, had been gradually evolved from 
history, and were the slow and ripened products of time. 
But the important provisions of our Constitution were not 
created when the Constitution was written. They were not novel 
and untried, but had been worked out in the bitter struggle of cen- 
turies between despotism and liberty. Many of them had been 
fashioned in the history of other nations, and chiefly in the growth 
of the British government. Some of them had existed in our 
colonial charters, and in the constitutions adopted by the States 
during the revolutionary period. But it was a wonderful work 
performed at a given time when our Constitution makers collected 
those immortal principles and wtote them together in a single 
document as the basis of a nation. 



THE AMERICAN CONSTITUTION 7 

I know it has been said that the founders of the Dutch Eepub- 
lic did substantially the same thing when they established the 
union of Utrecht by a written constitution. But that union was 
a mere treaty between the Dutch states and, as an eminent critic 
has pointed out, it formed no central authority at all, but only a 
debating society. Its action was binding upon no state which did 
not subsequently accept it. It had even less authority than the 
confederation which preceded our Constitution. 

To my mind the distinctive thing about the American Con- 
stitution, which indelibly stamps its character, is that it embodied 
an experiment before that time unknown, and , established a gov- 
ernment upon the corner stone of the individual, making him for 
certain essential purposes of freedom superior even to the Gov- 
ernment itself. In the other nations, whatever liberty there was 
had commonly appeared in the form of concessions and grants 
from sovereigns to the people. The kings ruled by a claim of 
divine right. Whatever of liberty the people enjoyed came by 
gift from the king, and whatever authority was not granted by the 
king remained vested in him. But the American Constitution 
reversed all that. It proceeded from the people. The Govern- 
ment which it established was one of limited powers. Every 
power that it possessed was delegated by the people, and every 
power not granted was expressly reserved to the people or to some 
of the governmental organs which they had previously established^ 
The original Constitution was framed upon this theory, but that 
there might be no doubt about it, at least six of the States, and 
among them Virginia and Massachusetts and New York, accom- 
panied their ratification by resolutions making an express construc- 
tion that all powers not granted were reserved ; and the first Con- 
gress submitted among the amendments embodying the bill of 
rights, the Tenth Amendment, declaring that "the powers not 
delegated to the United States by the Constitution, nor prohibited 
by it to the States, are reserved to the States respectively or to 
the people.^^ This amendment was immediately ratified and 
placed in the Constitution. It is there even more impressively 
than if it had been made a part of the original instrument, and it 
deals a death blow to the theory that our government has about 
it any "divine right" or any "'inherent power," or any power that 
is not contained in the express grant. To my mind therefore 
the striking thing in the American Constitution, which differen- 
tiates it from the previously formed constitutions of all other 



9 



THE AMERICAN CONSTITUTION 



nations, is the manner in which it imposed limitations upon gov- 
ernment, recognizing that all power originally resided in the 
people, and that no government had any species of authority over 
th.em which they did not expressly grant. 

Tlie fraraers of the Constitution knew or cared nothing 
about the consciousness of a State or of a world. The only free- 
dom that they had knowledge of was individual freedom, and to 
that freedom they knew that government had often been the most 
deadly foe. The problem that they attempted to solve was to 
organize a State in which stability and order should be reconciled 
with liberty. Their prime purpose was to secure the wellbeing of 
the individual, which was the highest conscious unit they knew 
anything about. They believed that it was for individual men 
that States were founded, for those who were governed that gov- 
ernments were ordained. History up to that time had been 
chiefly made up of the doings of governments under which the 
masses of mankind were permitted to stand afar off and see the 
groat central figure perform, see him engorged with power, sur- 
rounded by his creatures pandering to his whims, in order to 
buy themselves new honors, while the toiling millions of men and 
women were preyed upon and despoiled, with no right to liberty or 
even life itself, except by the grace of the sovereign. The people 
existed for the government and not the government for the people. 

In the little island from which they came their fathers were 
near enough to the throne to suspect at first, and then to know 
that the king was a man like the rest of them, and by steady and 
resistless struggles they were able to secure more and more of the 
powers of the government in the people, until at last their sov- 
ereign was reduced almost to a fiction and became a mere influence 
rather than a power. But abstractly, the government of England 
is without limitation. The powers granted to Parliament hedge 
about and limit the king, but what limitation is there upon the 
power of Parliament? More firmly even than the liberty of the 
people of England did the Constitution establish the individual 
freedom of our own people. It safeguarded the citizen in certain 
great essentials against the republic itself and against the tyranny 
of the majority, even when expressing itself through the agencies 
of organized government. 

Has it worked badly, this system of protecting the individual 
of the million, this letting in the light of freedom to warm and 



THE AMERICAN CONSTITUTION 9 

stimulate his faculties? Man is the greatest force we know of 
upon Llie planet, and tlie genial influence of freedom has kindled 
his powers into action, has brought the faculties of millions into 
full play. It has not limited ambition to the few, but has made it 
free to all. It has stimulated invention, industry, enterprise, and 
is chiefly responsible for the astounding development the world 
has seen since the establishment of the American Constitution. 

I desire to speak to you at some greater length upon a sub- 
ject to which I have alluded, upon the federated character of our 
system, and the relation between the national and the local govern- 
ments. Our somewhat complex system was the logical result of 
the conditions existing after the Eevolution ; I say complex because 
I do not know where to find such another double allegiance, if I 
may call it such, where two governments divide between them 
the exercise of sovereign powers over the same territory. There 
are instances where one government delegates certain authority 
over its soil to another, and where there may be an inferior and 
subject government, the power of which is revocable by the im- 
perial state, but such systems are not parallel with ours. 

Our Constitution makers wished to escape the chaos and weak- 
ness inevitable from having a great number of independent sov- 
ereigns, such as existed here immediately after the revolution. 
On the other hand, they wished to avoid a highly centralized gov- 
ernment. James Wilson feared that the National Government 
would be made so weak that it would be devoured by the States, 
but neither he nor those associated with him desired it to be so 
powerful that the States would be devoured by it. They aimed 
to establish a safe balance which would equally protect both against 
dis-union and a centralized autocracy. Critics of their work, who 
delight to parade the usually safe wisdom, which lags a century 
after the event, now point out that they might have drawn a 
stronger Constitution and have averted the civil war. But this 
is by no means clear even now. A Constitution with a stronger 
central government would probably not have been ratified at all, 
03', if ratified, would very likely not have delivered us from civil 
war. Our ancestors could not legislate partisan passion out of 
the human breast. Previous generations had entailed the black 
heritage of slavery upon a great section of the country. It became 
inevitably the occasion for a furious sectional strife. It is probable, 
with such a deep-seated and irrepressible cause of irritation, that 



1 



lo THE AMERICAN CONSTITUTION 

there would have been war in any event. If such a cause had 
not existed, it is altogether probable that the people would have 
accepted as the more practical one, the theory put forth with im- 
mortal eloquence by Webster, that the National Government within 
the sphere of its constitutional powers was supreme. 

The logic of Calhoun, transcendent though it was, led to a 
barren conclusion from a practical standpoint, for if each State 
were at liberty to withdraw from the Union at pleasure, the Union 
as Webster expressed it, would have been but "a rope of sand." 
So, I think the Civil War was due to another cause than the in- 
completeness of the work of the Constitution makers. They 
created an admirable poise, avoiding the weakness of disunion on 
the one hand, and on the other the destruction of individual liberty, 
certain to result from a highly centralized government, destined 
some day to hold sway over hundreds of millions of people, inhabit- 
ing vafet stretches of the earth's surface. This aspect of our con- 
stitutional question is especially important at a time when it seems 
not unlikely that the National Government may attempt to devour 
the States. 

We are all to be regulated in our business and modes of 
living by gentlemen sent out from Washington, and the gentlemen 
sent out from Washington are to be regulated by one man in the 
White House. Would it be possible to conceive of a more ideal 
centralized paternalistic government? To illustrate the extent to 
which this national detective system has grown. Congress at its 
last session appropriated about nine millions of dollars to inspect 
various kinds of business, more than five times the amount ap- 
propriated for similar purposes ten years ago, or probably a greater 
sum than was required at that time for the pay and subsistence of 
all the private soldiers in the army. Were we hopelessly wicked 
and corrupt a decade ago, or has cur wickedness increased so 
rapidly during that time that this vast army of Federal detectives 
should be set upon the tracks of the people ? And, there are still 
other proposals for increases of the system, and the end is not 
yet. TTow much farther need we go in this direction before we 
shall range ourselves by the side of Russia and every business man 
will hqve a federal inspector at his elbow? 

But, if this excessive governmental supervision of the citizen 
is so necessary, why should it be conducted on so large a scale by 
the National Government? Is an inspector who feeds at the na- 



THE AMERICAN CONSTITUTION ii 

tional crib, far from the master's eye, likely to be any better than 
the one acting under local authority? And, by the master, I 
do not mean the President; he is only a servant, for the people- 
are supposed to be the masters of their government. If we study 
our histor}^ we shall not find that the Federal inspectors are made 
of any super-human material. They are made of precisely the 
same clay as are the agents of local governments, and subject to 
the same human frailties. Look at the swindles connected, 
with federally inspected banks; at the astounding corrup- 
tion attaching itself to almost the only railroad built under 
national auspices; at the horrible disasters upon, the sea, due in_ 
part to the failure of Federal inspectors to do their duty. I shall 
not prolong the list. I only allude to these instances to show 
the baselessness of the assumption that one who holds a Federal 
commission is infallible, and of the further assumption that the 
evils now existing in life will all disappear if we shall enter upoiL> 
a Utopian world, where every breath we draw will be under the- 
direction of some beneficent instrument of the Washington diety. 
I take it that national office holders are no better and no worse than 
are the officers of States, but as governmental functions are more 
and more transferred to the national authority, the number of 
agents subject to a single jurisdiction is increased amazingly, and 
the authority exercised by the man at the head of this colossal 
machine passes all bounds. 

Tliere are of course certain great imperial powers that must 
be exercised by the National Government, but the time-honored 
functions of the States have as a whole been well administered, and 
they should be permitted to remain with the States. The people 
can exercise a closer scrutiny over the conduct of their local 
agents, and the commission of acts of wrong doing will be more 
apt to be detected and pimished, and hence more apt to be re- 
strained. We have had painful instances of dishonesty in con-- 
nection with the government of our cities, but it is significant 
that they have usually been unearthed not by office holders, but by 
the vigilance and public spirit of private citizens who can 
get a near view. It was so a generation ago when Tilden 
and his associates brought Tweed to justice in ISTew York. 
It i? so at this moment when a body of men holding no 
office are disclosing some startling things in connection 
with the government of Boston. This most salutary force is^ 



12 THE AMEBIC AN CONSTITUTION 

largely wanting when you set up your government upon a stage 
one thousand miles from, those who are governed. Office holders 
sometimes find each other out, or turn state's evidence, hut the 
most potent agency to secure honest official conduct is the sleepless 
vigilance of the people. 

A great central government exerting its authority in all gov- 
ernmental matter? over a vast and scattered population necessarily 
takes on an autocratic character. The part of each individual in 
such a government becomes so infinitesimal and diluted that it 
vanishes almost entirely as an appreciable force. The wide range 
of powers heretofore exercised under the Constitution by the States 
gives an opportunity to the individual citizen to bear an appreci- 
able part in actual government. The historian Freeman, in com- 
paring small states with great ones, said that a "small republic 
develops all the faculties of individual citizens to the highest pitch. 
The average citizen of such a State is a superior being to the 
average citizen of a large kingdom. He ranks not wdth its aver- 
age subjects, but at the very least with its average legislators." I 
have given the obvious reason. In a small community resting 
upon suffrage, which is practically universal, the average citizen 
takes part in the actual work of government, and is disciplined by 
it, while in a very large nation he is practically a spectator. In 
the one case participation in government will beget a facility for 
it, and dealing with subjects at close .range, his practical sense 
instead of his imagination will be brought into play. But where 
he is a spectator looldng at transactions taking place upon a 
distant stage, the thing that stages well is the thing that will com- 
mand his attention. The rotund chest and swelling shoulders of 
the hero may be only sawdust, but the effect upon the distant on- 
looker will be the same. He is dealing with things which may or 
may not be real. The opportunity for deception is great, the 
chance of detection small. The ideal condition is that provided 
by our system. We can have the protection, the security and the 
sense of national pride attending a great nation, and we can at 
the same time be free in conjunction with those in our immediate 
neighborhoorls to manage our local affairs in our own way, without 
the intermeddling of an autocrat. 

Our vexed constitutional question was settled by the arbitra- 
ment of war. What was called the lost cause was striken down 
not by superior valor, for that has nowhere been seen among men, 



THE AMERICAN' CONSTITUTION 13. 

but by the weight of heavier battalions. I think you will agree 
with me that it was well for us, well for all mankind, that the 
empire of this continent of ours should not be divided between 
two great and possibly warring nations and that those who shall 
hereafter live in the South and in the North shall be citizens of 
one common country. But the civil war did not destroy the 
autonomy of the States. After the war had ended the great Chief 
Justice, himself a conspicuous actor in the struggle, declared from 
the bench of the Supreme Court that "the Constitution in all its 
provisions looks to an indestructible union composed of indestruc- 
tible States." It is no more repugnant to our system for the 
States to nullify the action of the National Government than for 
the National Go^'ernment to usurp the powers of the States. If 
we shaH be true to the system our forefathers believed so vital 
to liberty, we will maintain the balance which they established 
between the local and central governments. 

The mortal disease of democracies is the demagogue. It is so 
easy to make the most prosperous people think they are ill-treated 
and badly off; it is so easy to use the property of a small class to 
bribe the members of a large class, that unscrupulous politicians in 
all ages have found a ready means to advance their fortunes under 
democratic governments. The makers of our Constitution were 
well aware of this danger, and they made careful provision against 
the demagogue. They knew that often history condemned what 
the crowd at the moment applauded. They safeguarded liberty 
and property, imposed checks against hasty action, so that the 
people might have time to think and form an opinion worthy of the 
name, and they carefully distributed power among the three great 
departments of government. The system has worked admirably. 

That was an impressive dictum of Montesqueu, that "there is 
no liberty if the judiciary be not separated from the legislative and 
executive poM^ers." The independent judiciary o(f the United 
States, standing apart and coldly scrutinizing in the light of the 
Constitution the action of the other departments, has proven a most 
effective guardian of liberty. 

The House of Eepresentatives, fresh from the people, is sure 
to voice the immediate popular demand. The Senate, differently 
constituted, acts with more deliberate reserve, although its 
efficiency would be increased and its conservatism in no degree 
lessened if ibe democratic principle were not so grossly violated 



14 THE AMERICAN CONSTITUTION 

in its composition. The Constitution so invested the President 
with power at the same time that it decorated him with honor 
that it satisfied his ambition and sobered him with the weight of 
great responsibilities. And our Presidents have usually been a 
great conservative force, and more than once they have not hesi- 
tated to step into the cold light of unpopularity if they might 
thereby advance their country's honor. Sailing before the wind 
has not been a favorite pastime with American Presidents; their 
great deeds often have been at the time unpopular. Washington 
breathod the popular fury when he issued his proclamation of 
neutrality, but he struck a mighty blow for the independence of 
our foreign relations. Cleveland heroically braved a widespread 
sentiment and sacrificed his popularity in order to preserve the 
standard of value of our money. And when the printing presses 
were to be set in motion and the national bondholders were to 
be paid in paper Grant, the silent, inflexible soldier, who was 
always a hero unless upon dress parade, interposed his veto against 
inflation. The result of the workings of our institutions has been 
seen in a progress which has conserved, and while we have made 
haste slowly we have outstripped all other nations. 

Thus the Constitution has safely carried us through the most 
rapidly moving century the world has ever seen. It has shown 
itself equal to this great era. How will it ride the tumbling 
waters of the century that has just dawned? How will it be in 
the far future when mayhap the Gaul shall insultingly leap upon 
the ruins of the Capitol and "wasteful wars shall statues over- 
turn"? Whether it shall then endure or be derided and trampled 
under foot will depend not so much upon the virility of its powers, 
.as upon the integi'ity and sense of Justice of the American people. 
No constitution can save a nation from itself. To that riddle of 
the future the wise and venerable Franklin in almost the last 
words spoken to the convention, after the engrossed copy had been 
read, gave perhaps the mo<5t illurainating answer that can be made. 
It can, he said, speaking of the Constitution, "only end in des- 
potism, as other forms have done before it, when the people shall 
become so corrupted as to need despotic government — being in- 
capable of any other." 



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